Guthrie v. Biethan

• Decision Date: 07 March 1914
• Citation: 25 Idaho 706,139 P. 718
• Parties: WILLIE E. GUTHRIE, FRANK ANDREWS and WILLIAM HAYES, Respondents, v. D. H. BIETHAN, L. R. ALDRICH and H. W. CURTIS, Appellants
• Court: Idaho Supreme Court

139 P. 718

25 Idaho 706

WILLIE E. GUTHRIE, FRANK ANDREWS and WILLIAM HAYES, Respondents, v. D. H. BIETHAN, L. R. ALDRICH and H. W. CURTIS, Appellants

Supreme Court of Idaho

March 7, 1914

INJUNCTION-QUASHING WRIT-DAMAGES.

1. One who is restrained by writ of injunction from doing something he had no legal right to do cannot recover damages though the injunction has been wrongfully issued.

APPEAL from the District Court of the Sixth Judicial District, in and for Bingham County. Hon. J. M. Stevens, Judge.

Action to recover damages on an injunction bond where the writ had been dismissed or quashed. Judgment for plaintiff. Reversed.

Reversed and remanded with instructions, with costs in favor of appellant.

Hansbrough & Gagon, for Appellants.

A person restrained from doing what he had no legal right to do has no right of action for damages, even though the injunction has been wrongfully issued. (22 Cyc. 1062; Parks v. O'Connor, 70 Tex. 377, 8 S.W. 104.)

When goods are illegally seized under execution, the plaintiff cannot recover damages by reason of an injunction to prevent a sale sued out by the person entitled to the goods, even if the injunction was not warranted by law. (Sumner v Crawford (Tex. Civ. App.), 41 S.W. 825.)

The allowance of counsel fees as damages upon dissolving an injunction is based upon the fact that the defendant has been compelled to employ aid in ridding himself of an unjust restriction which has been placed upon him by the action of the plaintiff. (2 High on Injunctions, 4th ed., sec. 1686; Buford v. Keokuk Northern Line Packet Co., 3 Mo.App 159; Boleing v. Tate, 65 Ala. 417, 39 Am. Rep. 5; Anderson v. Provident L. & Trust Co., 26 Wash. 192, 66 P 415.)

Costs or damages are not allowable in a suit or proceeding to which the injunction is a mere incident to the main suit. (22 Cyc. 1057; Bullard v. Harkness, 83 Iowa 373, 49 N.W. 855.)

A. S. Dickinson, for Respondents, cites no authorities on point decided.

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought on an injunction bond to recover damages alleged to have accrued by reason of the wrongful issuance of a writ of injunction. The action was tried by the court with a jury and verdict rendered and judgment entered for plaintiffs in the sum of $ 125. The appeal is from the judgment.

The following facts appear from the record:

On the 29th of October, 1910, the appellant Biethan brought an action to foreclose a crop mortgage, against J. D. Muir as mortgagor, joining also George A. Robethan, Willie E. Guthrie, Frank Andrews, Murl Burton, David France, William Hayes, Thomas Conroy and John T. Danilson, sheriff of Bingham county, as defendants. The defendant Robethan held a prior crop mortgage against Muir, in which foreclosure proceedings had been had. The other defendants, except the sheriff, were crop lien claimants against Muir. At the same time an injunction was issued enjoining the sheriff from paying over any money, goods or chattels then in his hands or that might come into his hands by reason of the sale of any of the property of said Muir. In said action of Biethan v. Muir et al., said lien claimant defendants filed an answer and set up copies of farm laborers' liens, and also averred in their answer the confession of judgment by Muir and a decree of foreclosure, foreclosing said farm laborers' liens, and alleged and claimed that said liens were superior to the lien of the mortgage which plaintiff Biethan was seeking to foreclose. This action was commenced October 29, 1910, and the answer thereto was filed November 12, 1910. On November 15, 1910, a notice and motion was filed in that suit to dissolve the injunction. On November 18th or 19th, 1910, the same was heard and taken under advisement by the court, and on the 22d of November, 1910, the court made an order dissolving the injunction. It also appears that on the hearing on the motion to dissolve said injunction, two judgments had been entered upon the confession of judgment by Muir in favor of the lien claimants. One was an ordinary money judgment, and the other a decree of foreclosure and sale under said liens. Said two judgments purported to have been filed with the clerk on the 24th of October, 1910, but the evidence shows that the second, the decree of foreclosure, was not entered for several days after the first judgment and was filed sometime after the 28th of October, 1910, as of the 24th of that month.

Neither at the time said answer was filed and the motion to dissolve was made, nor until the motion was argued did the plaintiff in his foreclosure suit have knowledge that there had been entered by confession said two judgments. Immediately after the discovery that said judgments had been entered by confession, the appellant Biethan brought another suit in the district court against Muir, the plaintiffs in this action and others, charging fraud and irregularity in the procuring of said judgments by confession, and on the same day obtained another injunction enjoining and restraining the same parties from doing the same acts that they were enjoined from doing in the former suit, the foreclosure suit, and then paid no further attention to the injunction in the foreclosure suit. The foreclosure suit was postponed and continued until the second suit was tried, which trial was had after answer by the defendants setting up practically the same defense as in the first action, and on the trial of that case before a jury, the jury found that the defendants, who are the respondents...